Also under Wills & Probate:
Wills & Probate
Choosing the right lawyer to represent you when you need to make a Will or represent an estate is important.
It is such a personal matter that you need someone you can trust to support you every step of the way.
These days there are many DIY Wills kits available. The fact is, you need a Will that you and your dependants can rely on. That will stand up against a potential challenge. Only an experienced lawyer can make your Will watertight.
At life’s hardest moments, you need to be comfortable with the values and culture of that firm.
Our lawyers place a client’s trust ahead of profit. We never cut corners, getting the job done properly for your benefit, not ours.
We may like to think that the purpose of making a Will is so that we have control over who will inherit everything we own when we die. It may be surprising to learn that there are some assets that cannot be controlled by your Will.
It is important that you get the legal advice you need to start putting in place a plan for your Estate.
Well thought-out Estate planning can prevent unnecessary heartache and unintended consequences for your family and loved ones.
Making a Will
What is a Will?
A Will is a legal document that sets out the distribution of your assets (that is, your estate) upon your death.
You must be over the age of 18 to make a Will and have testamentary capacity, meaning that you can understand what your assets and liabilities are, what value they have and the nature and effect of your Will.
Why should a lawyer draft my Will?
It is important that your Will is drawn to comply with all of the validity requirements of legislation and it is important to word it carefully to ensure your property will be divided according to your wishes.
An important part of this is to identify in the first place which assets are covered by your Will. Some assets do not necessarily form part of your estate and you will need to think about how those assets will be controlled and distributed if you die.
We help you prepare your Will so that you can avoid the common pitfalls associated with making a DIY Kit Will or dying without a Will.
Dying without a Will (intestacy)
What are the risks of dying without a Will?
If you die without a Will, that is known as dying intestate. The laws of intestacy govern the distribution of your assets. Intestacy laws set out a formula based on your relatives and dependants to work out who your beneficiaries will be.
There are many disadvantages of dying without a Will, including:
- Your property may not be divided according to your wishes
- Your children and other dependants may not receive the financial assistance you’d like them to have and they will inherit their share of your estate at the age of 18, rather than having to wait until they are of an age you consider appropriate, for example, 25
- Your step-children, an important relative or friend or favourite charities may miss out.
- Your estate may be administered by someone you disapprove of
- Your infant child’s trust account may be administered by someone you disapprove of and whom you believe may not have your child's best interests as their number one concern
The risk of homemade or DIY Will kits
Homemade Wills and DIY Will Kits can give rise to challenge of validity for a variety of reasons. It is not uncommon for the Will to be written out by someone other than the Will maker, for example, the children might all get together and two or more of them write out different sections of the Will on mum or dad's instructions. The different handwriting raises the question of who actually made the Will. Another common error is in the signing and witnessing of the Will which can also lead to invalidity.
Even if the homemade Will is not invalid in its entirety, minor mistakes in the Will may lead to substantial costs and delay in proving to the Court that it is a valid Will.
The second type of challenge is called a Testator’s Family Maintenance claim, or in Victoria a Part IV Claim because the law for this type of challenge is set out in Part IV of the Administration and Probate Act 1958 (Vic).
Remember that if there is a dispute over the Will, it is important to obtain advice quickly because there are time limits for challenging a Will.
Family Law and dying without a Will
It is important to note that if you have been separated for many years and are not presently in a domestic relationship with a new partner then unless you are actually divorced your spouse will have entitlements to your estate if you don't have a Will. Or, you might have been separated from your spouse for years and have a new partner but if you're not divorced then your spouse is still entitled to a share under the laws of intestacy. For most people, these events would be far from desirable.
Remember that once married your legal status remains as such unless and until you get divorced.
If you have an infant child and die without a Will, it is the surviving parent who is first in line to apply to be put in charge of your child's trust fund and your child can gain access to their trust fund at the age of 18.
Updating a Will
When your life changes significantly, so should your Will.
Once you make a Will it does not have an expiry date and can potentially last for many years; however, it is impossible to make a Will that will cover all possible future events.
Your Will should be made in light of your present circumstances. Your Will must be reviewed whenever there are a significant changes in your life and the lives of your loved ones such as births, deaths, marriages, domestic relationships, separation and divorce.
If you have young children, the arrangements you put in place in your Will now should be updated once your children have grown up and become independent.
A codicil is a legal document that allows you to add or make a minor change to an existing Will. For example, you may wish to add or change your Executor but not re-write your existing Will. A Codicil acts as a supplement to your existing Will allowing you to make this kind of minor change.
Superannuation and Life Insurance - asset protection
Superannuation is a significant asset that you may not be able to control via your Will.
The Trustee of your superannuation fund has the ultimate say in who to pay your superannuation to (including any death insurance through your super fund) when you die.
The Trustee of the super fund will exercise its discretion to pay your superannuation to your dependents or into your Estate. The only exception to this is if your superannuation fund allows you to make a binding nomination for your beneficiaries. However, a binding nomination can only be made in favour of a certain class of beneficiaries. It is important to understand this.
It is the terms of your life insurance policy that dictate who will be paid out, not the terms of your Will.
If you own a life insurance policy (other than an insured death benefit through your superannuation fund) you need to check the terms of the policy and see who you have nominated as the beneficiary and/or on whose life the policy is on. It is possible for you to own a policy that relates to the death of another person, e.g. your spouse.
If you want the life insurance to go to your estate, you should ensure that you can make a binding nomination for the beneficiary to be your estate.
We can give you further advice about superannuation, life insurance and binding nominations when you come to see us to talk about your Will.
Succession law refers to the body of laws that governs what happens to your Estate after you die. Legislation and case law in relation to Estate administration, family provision claims, payments of debts, duties of Executors and the validity of Wills are all part of Succession law.
Our lawyers are well versed in the intersecting areas of law that make up succession law.
With this knowledge, you can trust us to take a considered approach to helping you plan your Estate and administer an Estate.
A Testamentary Trust is a trust created by your Will. A Testamentary Trust established by your WiIl holds your assets in a Trust, rather than having them go directly to your beneficiaries.
This means it can protect the assets long after you die, preventing access by creditors or potential former spouses or partners of beneficiaries. Testamentary Trusts can also be a mechanism for minimising the tax burden on beneficiaries if the income generated by the trust is distributed in a certain way.
A Will which includes a Testamentary Trust provision is more complex and sophisticated than a simple Will, so you will need expert advice from one of our lawyers to take you through all of your options.
Executors and Trustees
When you make a Will, you will be asked to appoint an Executor and Trustee of your Estate.
Your Executor has the responsibility of administering your Estate in accordance with your Will after you die. They will also be responsible for organising the funeral.
It can be difficult and challenging to be an Executor. An Executor will be responsible for gathering the required documentation, signing all the necessary forms, and establishing the deceased’s finances. Where there is dispute or challenge to the Will, an Executor may be put in a position where they will have to make hard decisions to resolve Estate issues or disputes.
Without experience in business, finance or the law, this can be a daunting and difficult task – even in the most straightforward cases. An experienced Estate lawyer can help guide you through it by preparing documents on your behalf and communicating with any asset holders or creditors.
The responsibility of an Executor arises upon the death of the deceased.
Often, Executors will also be appointed Trustees of an Estate. A Trustee may be tasked in your Will with holding money or assets on trust for a beneficiary. For example, you may appoint your spouse your Executor and also Trustee to hold money for your children on trust until they are 25.
A Trustee has certain obligations and duties to manage the assets and act in the best interests of the beneficiaries.
If you have young children an especially important part of making your Will is to nominate who your Executor and Trustee will be, that is, who will set up your child's trust fund and decide what the appropriate payments from the child's trust fund will be. You should consider the desirability of choosing a Trustee based on who you think would love, care for and raise your children if you can't.
If you have been appointed Executor or Trustee of a deceased Estate but are not sure what to do next, you can see one of our experienced Estate lawyers for immediate assistance and guidance.
Joint Property Ownership and Survivorship Applications (ASP)
Assets registered as jointly owned with another person will pass under the laws of survivorship and not under your Will.
The prime example of this is a family home owned by a couple as joint proprietors/joint tenants. If you own your house as joint proprietors with, for example, your spouse or partner, the laws of survivorship apply so that if you die, the house automatically passes to your spouse. This is the case even if your spouse or partner survived you by even just a few minutes.
The same rule commonly applies to the contents of your home and other jointly owned assets such as joint bank accounts. The exception to this is where the property is held as 'tenants in common'. It is possible to convert joint tenancy to tenancy in common or vice versa but important to obtain advice about the implications.
For this reason, if you have jointly owned assets, it is critical that you and your partner have "mirror Wills" that cater for the event that you are both involved in an accident, setting out who is to inherit your jointly owned assets if you both die.
To pass a property held jointly with another person into the name of the surviving owner, the surviving owner will need to complete a Survivorship Application (ASP) with the Titles Office.
Our team can assist a surviving owner to make a Survivorship Application.
Superannuation Death Benefit Claims on Deceased Estates
Superannuation does not automatically come under the control of a Will. It will be at the discretion of the Trustee of the Superannuation fund to decide who to pay your super to if you have not properly completed a Binding Death Benefit Nomination.
Death Benefit Claims for the deceased’s superannuation may be made on a deceased Estate by a person classed as a dependent of the deceased.
Dependants include a spouse or de facto spouse, a child of the deceased, or a person who is in a dependency relationship with the deceased (i.e. because they live together or are financially supported by the deceased).
This means that those you may have a close relationship such as brothers and sisters cannot be classed as dependents and cannot be entitled to your superannuation unless you are in a relationship of independency or you have completed a Binding Death Benefit Nomination form in favour of your Estate and have worded your Will appropriately.
It will be important to obtain legal advice in relation to Estate planning and superannuation – or if you are a dependent, how to make a death benefit claim and the tax implications of receiving a deceased’s superannuation death benefit.
Executors may wish to claim money from an Estate as payment for their time and effort,
An Executor can only receive a commission for carrying out the role of executor if they have the testator’s (will-maker) or beneficiaries’ informed consent, or the authorisation of the Supreme Court unless a Trustee company is acting as Executor in which case legislation allows them to charge for their services.
If you are appointing a professional accountant, legal practitioner or financial adviser as your Executor, it is likely they will seek an Executors Commission to carry out the role of professional executor.
Payments are often expressed as a percentage of the capital and income of the Estate or a professional Executor may charge fees.
Rights of beneficiaries
Beneficiaries receive money or other assets from your Estate. Executors and Trustees owe duties to beneficiaries and beneficiaries have a corresponding range of rights, for example, to information about money being held on trust for them, or to compel the due administration of a trust.
Beneficiaries are also entitled to see a copy of the Will upon request.
Wills And Probate FAQs
If you die without a Will, Section 70A of the Administration and Probate Act 1958 (Vic) (‘Administration and Probate Act’) says that the Laws of Intestacy will apply. This legalisation provides a hierarchy of the persons entitled to benefit from your Estate and a formula setting out how it must be distributed. Without a Will, you, nor your family, will have any control over how your assets are distributed.
Even if the requirements for execution are fulfilled, it does not necessarily follow that every provision in the Will will then be valid. Proper Will construction is critical to the full and complete operation of the intentions the Will seeks to fulfil. Section 70A(1)(b) of the Administration and Probate Act says that the Laws of Intestacy will apply in the event “a person dies leaving a Will which does not effectively dispose of the person’s Estate wholly or partially”.
For this reason, precaution should be taken when making a home-made Will or using a DIY Will kit.
Make sure the provisions in your Will are validly written and get legal advice to do so. For more information on the pitfalls of DIY Will kits, see our article: The dangers of DIY Will kits and homemade Wills.
There are a number of ways a Will may be revoked. As prefaced above, marriage will automatically revoke a Will where that Will does not specify that is has been made in contemplation of marriage. Divorce will invalidate any specific dispositions to your spouse and any appointment of your spouse as your Executor (although your spouse would still be trustee for children you have together).
However, you can also elect to revoke your Will at any point in time, so long as you have legal capacity to do so.
The most common method of revoking a Will is by making a new one. The creation of a later valid Will that expresses the requisite intention to revoke will successfully revoke all prior Wills. A Will may also be revoked by setting out in writing your intention to revoke your Will, or by destroying the original copy of the Will.
The best of the three options is to make a new Will containing an appropriate revocation clause. Whilst you may intend to revoke your Will by simply destroying it, there may be confusion if copies of the Will are still in existence.
While a Will may not have an expiry date, estate planning is an ongoing responsibility. Your Will should be reviewed regularly and at the advent of different life stages.
We recommend that our clients read over their Wills as frequently as once yearly. This is important to ensure that you remember what you have written and are able to satisfy yourself that your Will continues to be reflective of your wishes.
The other benefit of the regular reading of your Will is that it may prompt you to consider making alterations or obtaining updated advice in light of a change in your circumstances since your last Will.
In addition to regular reading of your Will, it is important to obtain updated legal advice at least every five years. In addition to possible changes in the law since your last Will, there may also be changes in your personal or financial circumstances that impact your Estate Plan. For these reasons, it’s important to check in with your Estate planning solicitor every so often to discuss the appropriateness of the dispositions in your Will.
There are a number of life circumstances that should prompt you to review your Will and obtain updated Estate Planning advice, including but not limited to:
- A change in your relationship status
- The birth of a child
- The death of a beneficiary or Executor
- A change in your assets
- When your children reach adulthood.
For more information on when you should review your Will, see our article: The 5 golden rules for when you should renew your Will.
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